Court File and Parties
Court File No.: CV-21-00666588-00CL, CV-21-00667783-00CL, CV-21-00666284-00CL, and CV-21-00667823-00CL Date: 2022-03-15 Superior Court of Justice – Ontario (Commercial List)
Re: PCL CONSTRUCTORS CANADA INC., Applicant And JOHNSON CONTROLS BE LTD. AS GENERAL PARTNER ON BEHALF OF JOHNSON CONTROLS CANADA LP, Respondent
And Re: JOHNSON CONTROLS CANADA LP, Applicant And PCL CONSTRUCTORS CANADA INC., Respondent
Before: Conway J.
Counsel: Krista Chaytor and Michael C. Ly, for PCL Constructors Canada Inc. Nicholas Kluge and Elizabeth Kurz, for Johnson Controls BE LTD. as General Partner on behalf of Johnson Controls Canada LP, and for Johnson Controls Canada LP
Heard: February 22 and 23, 2022
Reasons for Decision
[1] There are four applications before me: two brought by PCL Constructors Canada Inc. (“PCL”) and two brought by Johnson Controls Canada LP (or its general partner) (“Johnson”). The applications relate to arbitrations over the construction of the Humber River Regional Hospital (“Humber Arbitration”) and the Milton District Hospital (“Milton Arbitration”).
[2] PCL’s applications are brought pursuant to s. 17(8) of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Act”). PCL challenges the initial rulings of the arbitrators on their jurisdiction.
[3] Johnson’s applications are brought under r. 14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194; ss. 96 and 97 of the Courts of Justice Act, R.S.O. 1990, c. C.43; and ss. 8(2) and 17(8) of the Act. Johnson seeks declaratory relief with respect to the scope of the reconsideration rights of the arbitrators’ decisions.
[4] For the reasons that follow, I dismiss all four applications.
PCL Jurisdiction Applications
Overview of Facility Co-ordination Agreement Provisions
[5] The construction of the Humber and Milton facilities was governed by various agreements: a project agreement between each hospital and Project Co. [^1] (the “Project Agreement”); a design build agreement between Project Co. and PCL (the “Design Build Agreement”); a facility maintenance and services agreement between Project Co. and Johnson; and a Facility Co-ordination Agreement (“FCA”) between Project Co., PCL, and Johnson co-ordinating their respective obligations.
[6] The FCA is the key document in this case. It sets out the steps to be followed by the parties if Johnson becomes aware of a “Defect” that it believes is in whole or in part a “Construction Defect”. Specifically, s. 4 of the FCA sets out the following steps:
a. Johnson will notify PCL and Project Co. of the occurrence of a Defect that it believes is a Construction Defect (s. 4.1(a)(iii)(B)).
b. PCL may dispute that a Defect is a Construction Defect. If it does, then Johnson shall commission an independent engineer acceptable to all three parties to review and provide a report relating to the Defect to determine whether, in the engineer’s opinion, the Defect is a Construction Defect (s. 4.1(a)(vi)).
c. Either party may dispute the engineer’s report. PCL may also dispute that the Defect is a Construction Defect or dispute the nature or extent of its liability under the Warranties. In that case, the “Defect Dispute” is referred to the Dispute Resolution Procedure (the “DRP”) (s. 4.1(a)(ix)).
[7] The DRP is set out in s. 7.2 of the FCA. It commences with the delivery of a “Dispute Notice”. The parties will then attempt to resolve the Dispute by a settlement meeting. If they do not resolve the Dispute within five Business Days after the Dispute Notice is delivered, the parties will submit the Dispute for resolution pursuant to binding arbitration under s. 7.4 of the FCA, to be conducted in accordance with the Act. Section 7.4 sets out, among other things, the process for selecting an arbitrator and the jurisdiction and powers of the arbitrator.
Humber Arbitration
[8] In the case of Humber, Johnson delivered two notices of Construction Defect in October 2019. The alleged Construction Defects related to the elevators at the facility. PCL disputed the notices. National Elevator Consulting Ltd. (“National”) was retained as the independent engineer to determine if Defects in the elevators existed and whether they were also Construction Defects. National delivered a report in May 2020 in which it determined that the alleged Defects were “in part design defects as a result of non-conformance with the prescriptive and performance requirements of the ‘PSOS’” (that term is defined in the Design Build Agreement).
[9] PCL disputed National’s report. Johnson advised PCL that it was submitting the dispute for resolution by way of binding arbitration under s. 7.4 of the FCA. Johnson and PCL exchanged pleadings. The arbitrator, David McCutcheon, was appointed.
[10] PCL brought a motion for an order dismissing the arbitration on the basis that the arbitrator lacked jurisdiction because Johnson had failed to comply with the steps in s. 4 of the FCA (outlined above). Alternatively, PCL argued that the arbitrator’s jurisdiction was limited to determining whether an alleged Defect is a Construction Defect and that he had no jurisdiction to determine any of the remedies Johnson was seeking.
[11] Mr. McCutcheon dismissed PCL’s motion. He held that he had jurisdiction to deal with all of the Defects raised by Johnson in its statement of claim. He found that Johnson had sufficiently complied with the notice of defect requirement, had delivered the independent engineer report, and had complied with the other steps leading to the arbitration. He rejected PCL’s argument that he lacked jurisdiction because the prerequisites to the arbitration had not been satisfied. At para. 26 of his decision, he observed that the DRP in the FCA “sets out a staged process with options and consequences at each stage depending on the actions of the parties. It was intended to provide a road map to the parties to resolve any disputes in a timely and orderly fashion and proceed with the arbitration expeditiously.”
[12] He also held that his jurisdiction was not limited to a determination of whether an alleged Defect is a Construction Defect and that he had the jurisdiction to make a monetary award of Direct Losses (as defined in the Project Agreement). He noted that s. 4 of the FCA sets out the consequences of an arbitrator’s finding that a Defect is a Construction Defect, including that PCL has to diligently repair the Construction Defect and reimburse Johnson for Direct Losses. He interpreted the FCA and found his jurisdiction in the broad wording of s. 4.1(a)(ix), which gives the arbitrator the power to determine not only whether a Defect is a Construction Defect, but also the nature and extent of the liability of PCL under the “Warranties”. He examined the surrounding circumstances together with the wording of the FCA and found that the intention of these sophisticated parties in a major P3 project was to have Construction Defect issues determined in one proceeding, including the determination of Direct Losses. He also held that his jurisdiction to award Direct Losses from Construction Defects did not extend to awarding losses for negligence or other tort claims because these would be considered “Indirect Losses”, which the parties cannot recover as set out in s. 4.2(b) of the FCA.
Milton Arbitration
[13] In the case of Milton, the alleged Construction Defects related to issues with the humidification system and a sanitary pipe failure. Johnson delivered a notices of construction defect in January 2018 and October 2018, respectively. PCL disputed both notices. Johnson obtained reports from Crossey Engineering for the humidification issues and HH Angus for the sanitary pipe issue. PCL said that the Crossey Engineering report did not comply with s. 4.1 of the FCA and asked for another expert report to be prepared. Johnson said that PCL had all that it needed. PCL said that it disputed the HH Angus report.
[14] The matter proceeded to arbitration before Duncan Glaholt. PCL brought a motion for an order that the prerequisites to the arbitration had not been met and an order dismissing the arbitration. Alternatively, it sought an order that the jurisdiction of the arbitrator was limited to determining whether the alleged Defects were Construction Defects.
[15] Mr. Glaholt dismissed PCL’s motion. He held that neither of the reports substantially complied with the requirements of s. 4.1(a)(vi) of the FCA as neither opined on whether the alleged Defect was a Construction Defect. Nonetheless, he held that the steps in the FCA were not mandatory prerequisites the failure of which would lead to dismissal of the arbitration. He reviewed the language of the FCA and read it as a whole. He concluded that the parties “do not seem to have been as interested in their FCA in creating mandatory tiered dispute resolution provisions and settlement off-remaps as much as they were clearly interested in preserving their mutual right to arbitrate”: at para. 78. He noted that even when the parties set out the precise order in which dispute resolution steps were to occur (such as in s. 7.2), they did not expressly state what would happen if a step was missed or happened out of order. At para. 82, he stated that “nothing in the language of sections 4.1 or 7 of the FCA elevates any Defect Dispute pre-arbitration steps to the status of true conditions precedent to the jurisdiction of the arbitrator.” He accepted Johnson’s argument that “its failure to substantially comply with the requirements of s. 4.1(a)(vi) of the FCA is a correctable irregularity and not a circumstance nullifying the arbitration”: at para. 82. [^2]
[16] Mr. Glaholt concluded that his jurisdiction was not limited to a determination of whether a Defect was a Construction Defect and that he had the power to award damages. He noted that in s. 4.1(a)(iv) of the FCA, the parties contemplated that PCL might become financially responsible for the repair of a Construction Defect and for reimbursement of Johnson’s Direct Losses. Since he had the power under s. 7.4 to direct specific performance of a monetary obligation, he reasoned that such an order was indistinguishable from making an award of monetary damages. Finally, at para. 105, he found that the issue of monetary relief is “so closely and intrinsically connected with the Construction Defect dispute under s. 4.1 of the FCA that in the interest of efficiency those monetary issues must be disposed of by me in this arbitration.”
Issues to be Determined in PCL Jurisdiction Applications
[17] There are three issues to be determined on these jurisdiction applications:
a. What is the standard of review of the arbitrators’ decisions?
b. Did either arbitrator err in finding that the arbitration should not be dismissed because of alleged failures to comply with the prerequisites to arbitration? [^3]
c. Did either arbitrator err in finding that his jurisdiction is not limited to the determination of whether the alleged Defects are Construction Defects?
Standard of Review
[18] PCL submits that the standard of review on a matter of jurisdiction is correctness: The Russian Federation v. Luxtona Limited, 2018 ONSC 2419, at para. 23.
[19] Johnson does not dispute that correctness is the standard on a true jurisdiction issue. However, it submits that most of PCL’s alleged errors of law are not true jurisdictional issues and are more properly characterized as findings of mixed fact and law that attract a standard of deference. Johnson notes that jurisdiction is a narrow concept concerning whether the tribunal had the authority to make the inquiry: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 59; Telestat v. Juch-Tech Inc., 2012 ONSC 2785, at paras. 49-51.
[20] For example, Johnson argues that the arbitrators’ rulings are premised on their interpretation of the FCA and their conclusion that it did not create true conditions precedent to the jurisdiction of the arbitrator over the dispute. It submits that the interpretation of contracts is generally a question of mixed fact and law: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 50.
[21] I do not accept Johnson’s submissions, for three reasons. First, an arbitrator will typically have to interpret the contract between the parties to determine whether the arbitrator has jurisdiction. If I accepted Johnson’s submission, that would reduce the standard of review for jurisdiction from correctness to deference in most cases.
[22] Second, while the issue of whether the steps leading up to the arbitration were conditions precedent to the arbitrators’ jurisdiction is a reviewable issue (as set out below), it does not determine the standard of review. Johnson’s argument is somewhat circular. It argues that any issues relating to the steps leading to arbitration are procedural questions rather than true questions of jurisdiction such that deference applies. The problem with this approach is that it requires me to accept Johnson’s (and the arbitrators’) interpretation of the FCA before I determine which standard of review applies. I do not accept that approach. I am applying the correctness standard of review. Applying that standard of review, I will then determine whether the arbitrators’ conclusions that they had jurisdiction were correct.
[23] Third, the parties argued these motions before the arbitrators as matters of jurisdiction and obtained rulings from the arbitrators on their jurisdiction.
[24] I am therefore reviewing the jurisdiction rulings of the arbitrators on a standard of correctness.
Prerequisites to Arbitration
[25] In the Humber Arbitration, Mr. McCutcheon found that the notices of defect had been given in October 2019. He noted that the notice to arbitrate and statement of claim were not identical to the notices of defect (and went beyond the specific defects in the notices of defect) but that he could still accept jurisdiction over all of the issues raised in the former two documents. I agree with his analysis. The notices of defect alleged Construction Defects with the elevators. Likewise, the issues raised before the arbitrator all related to failures of the elevators. The purpose of providing notice — putting PCL on notice of the allegations against them — was served in this case. There can be no suggestion that PCL was not fully aware of the elevator issues to be determined at the arbitration.
[26] With respect to the engineer’s report, National’s mandate (known to PCL) was to provide an opinion on whether the alleged elevator Defect amounted to a Construction Defect. National identified the specific ways in which the elevators failed to comply with the PSOS. That term is tied to the definition of a Construction Defect in the Design Build Agreement. I therefore agree with the arbitrator that, by identifying specific failures to comply with the PSOS, Johnson satisfied the s. 4.1 expert report requirement.
[27] In the Milton Arbitration, two expert reports were delivered. Mr. Glaholt agreed with PCL that the expert reports were non-compliant with the FCA because they did not opine as to whether the alleged Defect was a Construction Defect (I note that Johnson does not agree with this conclusion). Nonetheless, he concluded that this was a correctable irregularity and not a jurisdictional issue nullifying the arbitration.
[28] I agree with Mr. Glaholt’s conclusion. In my view, faced with reports that were delivered but were not in substantial compliance with the FCA, he was correct in holding that the arbitration could still go forward and that the deficient reports did not nullify the arbitration and require the parties to start all over again. [^4]
[29] As conceded by PCL’s counsel at the hearing, all disputes between PCL and Johnson are subject to arbitration in the first instance. There are no disputes that are to be resolved through the courts or any other process. [^5] The issue is therefore not whether a dispute will be arbitrated but when it becomes subject to arbitration: Consolidated Contractors Group S.A.L. v. Ambatovy Minerals S.A., 2016 ONSC 7171, at para. 33. Specifically in this case, all disputes relating to alleged Construction Defects that are not resolved by the parties fall within the parameters of an arbitrator’s jurisdiction.
[30] In my view, the arbitrators were correct in holding that the steps set out in the FCA were intended by the parties to move them expeditiously towards a resolution of a dispute, after providing them with multiple opportunities to accept the other side’s position or settle it themselves. There is nothing in the language of the FCA that characterizes these steps as mandatory prerequisites to an arbitration or that sets out the consequences of any failure to comply with them. There is nothing that requires them to start over if compliance with a particular step is insufficient. If the parties intended such a specific result, they could have said so. Indeed, I agree with Mr. McCutcheon that the steps constitute a “road map” towards resolution and that they were intended to get the parties towards dispute resolution if they could not resolve the matter themselves. PCL’s interpretation would yield the opposite result.
[31] I also do not find PCL’s reliance on Maisonneuve v. Clark, 2021 ONSC 1960 to be helpful. In that case, Justice Gomery relied on “if-then” language in an arbitration clause to hold that the parties were required to try to resolve the issue before engaging in arbitration. She held that the language was “prospective and conditional”: at para. 58. [^6] In the case at bar, there is no comparable language. While Johnson is required to commission an independent report (s. 4.1(a)(vi)), the parties did not go further and state what would happen if the report was non-compliant. They did not provide that the arbitration was conditional on receiving a compliant report. Rather, s. 4.1(a)(ix) provides that the matter will move forward towards the DRP and arbitration if there are any disputes with the findings of the engineer’s report.
[32] In summary, the arbitrators’ rejection of PCL’s prerequisite arguments was correct. Both arbitrators have the jurisdiction to decide the Defect Dispute.
Limitation on Arbitrators’ Jurisdiction
[33] PCL submits that the jurisdiction of the arbitrator is restricted to making a Determination of whether the alleged Defect is a Construction Defect and that the arbitrator has no power to grant any relief that is consequential to that Determination. I disagree.
[34] The language of the FCA, read as a whole, is not as restrictive as PCL suggests. Section 4.1(a)(ix) defines a Defect Dispute as a dispute over whether a Defect is a Construction Defect or a dispute over the “nature or extent of PCL’s liability under the Warranties”. [^7] The parties clearly contemplated that an arbitrator would have the power to determine disputes over monetary issues under the Warranties.
[35] Further, ss. 4 and 7 must be read together. Under s. 4.1(a)(ix), a Defect Dispute must be referred to the DRP. That takes the parties into the dispute resolution procedures set out in s. 7 of the FCA, which outlines the powers of the arbitrator and permits the arbitrator to make an “award”. Section 7.4(e)(i) of the Milton FCA grants the arbitrator the broad power to “award any remedy or relief that a court of competent jurisdiction in Ontario could grant”. In my view, this would permit the arbitrator to grant relief that is consequential to the Determination of a Construction Defect and determine the quantum of the Direct Losses for which PCL must pay Johnson in respect of the Construction Defect.
[36] The Humber FCA does not contain the same express power. However, s. 7 suggests that the arbitrator has powers to do more than just make a Determination of whether a Defect is a Construction Defect. For example, s. 7.4(e)(vii) empowers the arbitrator to issue “interim orders, interim and permanent injunctions and order specific performance.” If the arbitrator has the power to order specific performance of PCL’s obligation to pay Direct Losses, that is functionally the same as the arbitrator having the power to quantify the amount of those Direct Losses and order PCL to pay them.
[37] In any event, an arbitration clause implicitly includes the power to award damages unless a contrary intention appears. As the Supreme Court of Canada stated in Desputeaux v. Éditions Chouette (1987) inc., 2003 SCC 17, [2003] 1 S.C.R. 178, at para. 35:
In order to understand the scope of the arbitrator’s mandate, a purely textual analysis of the communications between the parties is not sufficient. The arbitrator’s mandate must not be interpreted restrictively by limiting it to what is expressly set out in the arbitration agreement. The mandate also includes everything that is closely connected with that agreement, or, in other words, questions that have … “a connection with the question to be disposed of by the arbitrators with the dispute submitted to them”. [Emphasis Added]. [Citation Omitted].
[38] PCL argues that a contrary intention is expressed because ss. 4.1(a)(x) to (xii) mandate what is to occur if a Defect is found to be a Construction Defect. For example, PCL is (among other things) required to pay Johnson the Direct Losses in respect of that Construction Defect. In my view, while the FCA may stipulate that outcome, the language does not express an intention that the arbitrator cannot quantify the amount of the Direct Losses (in accordance with the definition contained in the FCA and related agreements) should a dispute proceed to the arbitration stage.
[39] PCL also submits that under s. 4.1(a)(iv) the stipulated outcome is the same where PCL (I) does not dispute that a Defect is a Construction Defect or (II) does not dispute the engineer’s report or (III) does not dispute the arbitrator’s Determination of the Defect Dispute. It argues that since the outcome is the same in all three scenarios, there is no basis for the arbitrator to determine what the Direct Losses are. I do not accept this submission. In (I) and (II), the parties have resolved the issue without having to go to arbitration. In (III), the parties have been unable to do so and, as such, have had to resort to arbitration to resolve the Defect Dispute. The disputes with respect to the Construction Defect and related consequences under the FCA are therefore squarely before the arbitrator.
[40] Moreover, s. 4.1(a)(xii)(A) provides that if the arbitrator determines that a Defect is a Construction Defect and PCL disputes the Determination by applying to court, then PCL is required to pay to Johnson “Direct Losses … in accordance with PCL’s obligations under the Warranties” pending determination by the court. In order for this to have any meaningful effect, the amount of the Direct Losses payable by PCL must be determined by the arbitrator. Otherwise, if there is a dispute over the quantum of the Direct Losses, the parties would have to engage in another arbitration, which would delay the payment of those Direct Losses and undermine the payment to be made by PCL under s. 4.1(a)(xii)(A). [^8]
[41] Finally, I agree with Johnson that PCL's interpretation of the FCA is commercially unreasonable. Separate arbitrations would be required to resolve every Construction Defect — the first to determine whether a Defect is a Construction Defect and the second to determine what flowed from that Determination. That would run contrary to the express intention of the parties in s. 7.4(i) to “proceed with the arbitration expeditiously, including in respect of any hearing, in order that an award may be rendered as soon as practicable by the arbitrator, given the nature of the Dispute”.
[42] The decision of the arbitrators that their jurisdiction is not restricted to a Determination of whether a Defect is a Construction Defect is correct.
Johnson Applications re Nature of Reconsideration Right
[43] Johnson seeks a determination by this court of the scope of the parties’ rights under s. 4.1(a)(xiii) of the FCA. That section permits a party, within 30 days of the arbitrator’s Determination of the Defect Dispute, to apply to a court of competent jurisdiction “to decide on the Defect Dispute” (the “Reconsideration Right”).
[44] PCL’s position is that the language of s. 4.1(a)(xiii) entitles the parties to a hearing de novo in court. Johnson’s position is that the Reconsideration Right is an appeal of the arbitrator’s decision pursuant to s. 45 of the Act. The parties sought a Determination of this issue from the arbitrators, who both held that they did not have the jurisdiction to address the nature of the Reconsideration Right. The arbitrators consented to Johnson bringing these applications to this court.
[45] Johnson argues that it requires certainty with respect to the nature of the Reconsideration Right before it proceeds further with the arbitrations. It submits that it needs to know whether the arbitrations are just a meaningless trial run in determining the Defect Dispute in that a court will subsequently be able to decide the dispute in a de novo hearing. According to Johnson, knowing the answer to this question is important because it will determine what resources Johnson should expend in the arbitration hearing.
[46] PCL submits that the nature of the Reconsideration Right should be decided by the court to which the application is made. It argues that under the FCA, the Reconsideration Right is not brought until after the arbitrator has made the decision. Therefore, the issue has not yet crystallized. Further, it is not known in what form the Reconsideration Right will be brought before the court and how it will be challenged by the other side. It submits that the court should have the benefit of pleadings and the underlying decision before it decides the nature of the Reconsideration Right.
[47] I accept PCL’s submissions for the following reasons:
- There is no reason that the nature of the Reconsideration Right must be determined now. The arbitration can be conducted by both the arbitrator and the parties without the answer to the question of how the arbitrator’s Determination, once rendered, is to be considered by the court.
- The issue has not crystallized. The arbitrator has made no Determination yet. Indeed, the arbitration is still at the jurisdiction stage.
- Johnson initiated the arbitration in the first place without the certainty that it now says it requires with respect to the scope of the Reconsideration Right.
- The FCA sets out the consequences of the arbitrator’s Determination that a Defect is a Construction Defect. PCL has to repair the Construction Defect and pay Johnson its Direct Losses, even if a party exercises the Reconsideration Right. There is therefore every reason for Johnson to fully participate in the arbitration, regardless of the nature of any Reconsideration Right.
- Any determination that I may make as to the nature of the Reconsideration Right will not binding on the court that hears the application. It therefore avoids the risk of inconsistent results.
- The court hearing the application can determine this threshold issue in a more contextual manner with the benefit of the decision, the pleadings, and the entire the factual background. It can also better determine the process and timing for determination of this threshold issue before it turns to the merits of its reconsideration of the arbitrator’s Determination: see Janssen Pharmaceutica Inc. v. Apotex Inc. (1998), 82 C.P.R. (3d) 574 (Fed. C.A.)
[48] I therefore decline to grant the declaratory relief that Johnson seeks with respect to the nature of the Reconsideration Right.
Decision and Costs
[49] PCL’s applications are dismissed.
[50] Johnson’s applications are dismissed.
[51] If the parties are unable to come to an agreement on costs, they shall schedule a half hour case conference before me (through the Commercial List office) to discuss the process for determining them.
Conway J. Date: March 15, 2022
Footnotes
[^1]: Project Co. is the entity that enters into a Project Agreement with the governmental authority and leads the P3 project team through the term of a Project Agreement. In the Humber project, Project Co. is Plenary Health Humber LP. In the Milton project, Project Co. is Plenary Health Milton LP. [^2]: He also found as a fact that PCL expressly agreed to proceed with the arbitration at a settlement meeting on September 25, 2020 and that PCL had decided it would dispute any adverse findings made by the engineer. [^3]: In these Reasons, I use the terms prerequisites and conditions precedent interchangeably. [^4]: I note that the arbitrator has broad powers under s. 7 and could require Johnson to correct the irregularity before proceeding further with the arbitration. [^5]: This is subject to the rights of either party under s. 4.1(a)(xiii) to have the matter determined by the court after the arbitrator has made the Determination. [^6]: Justice Gomery was conducting this analysis to determine when a limitation period began to run. [^7]: The terms “Construction Defect”, “Warranties” and “Direct Losses” are integrally woven together through the various documents. Warranties is defined in the Design Build Agreement (see s. 5.1(a) of the FCA). A Construction Defect gives rise to a claim under the Warranties (s. 1.1 of the FCA). If there is a Construction Defect, PCL must pay Direct Losses in accordance with its obligations under the Warranties (s. 4.1(a)(xii)(A)). [^8]: I also note that under s. 4.1(a)(xv), if the court decides that the Defect was not a Construction Defect, Johnson has to repay the Direct Losses to PCL with interest from the date of the arbitrator’s Determination. That presupposes that the amount of the Direct Losses has been known to the parties from the date of the arbitrator’s Determination.